Citation Nr: 0125457
Decision Date: 10/29/01 Archive Date: 11/05/01
DOCKET NO. 94-31 891 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to service connection for residuals of a jaw
fracture.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Panayotis Lambrakopoulos, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1947 to July
1951.
This appeal arises from a December 1993 rating decision of
the Los Angeles, California, Regional Office (RO) that
denied, in pertinent part, service connection for residuals
of a jaw fracture. In June 1996, the Board of Veterans'
Appeals (Board) remanded the veteran's claim for additional
development and readjudication, and in July 1999, the Board
remanded the claim again for compliance with its prior remand
order. The appeal is now ready for further appellate
consideration.
The veteran had also been seeking service connection for
thrombophlebitis. In June 1996, the Board determined that
new and material evidence had been submitted to reopen that
service connection claim and remanded that claim.
Subsequently, in its July 1999 decision, the Board denied
service connection for thrombophlebitis.
The Board notes that in July 2000, the veteran appointed an
attorney to represent him in a different matter before the
Department of Veterans Affairs (VA). A prior appointment of
representation, designating the Disabled American Veterans as
his representative, was still in effect with respect to the
issue currently before the Board. In view of his appointment
of private counsel, the Disabled American Veterans declined
further representation of the veteran. The veteran was
notified of this development by letter dated in September
2001. He was offered the opportunity to appoint other
counsel, but did not do so.
FINDINGS OF FACT
1. All of the evidence necessary for an equitable
disposition of the veteran's claim has been obtained.
2. Service medical records do not document any in-service
fracture of the jaw.
3. VA examinations did not diagnose any current disability
attributable to any in-service fracture of the jaw.
CONCLUSION OF LAW
Service connection for residuals of a fracture of the jaw is
denied. 38 U.S.C.A. §§ 1110, 1131, 5103A, 5107 (West 1991 &
Supp. 2001); 38 C.F.R. §§ 3.303, 3.304 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service connection is available for a disability resulting
from an injury or disease incurred or aggravated during
active service. See 38 U.S.C.A. § 1110 (West 1991 & Supp.
2001); 38 C.F.R. §§ 3.303, 3.304 (2001).
In March 1996, the veteran testified before the Board that he
injured the front of his jaw in 1949 when he fell out of a
bunk bed and hit his jaw against a footlocker. The veteran
further stated at that hearing that had medical personnel X-
rayed his jaw, they would have found it to be broken. The
veteran also affirmed that "no one actually said anything
about the jaw itself being broken." Transcript at 15.
After service, the veteran testified that he did not seek
treatment because of VA correspondence indicating that he
"had nothing coming." Id. at 16. He began going to VA for
treatment in 1976. Ibid. The veteran indicated that he had
sought treatment from a private dentist in 1953 and that this
treatment included oral surgery to remove part of the jaw.
Finally, the veteran indicated that he did not have any
residuals at that time due to the jaw but that he felt he
should be entitled to service connection because he had
incurred an injury during active duty.
There is no documentation of any fracture of the jaw in the
veteran's service medical records. While the veteran's
service dental records reflect some dental work in 1949,
those records do not reflect any fracture of the jaw. None
of the dental work is attributed to any particular in-service
injury or associated with any particular fracture of the jaw.
The veteran has undergone several post-service VA dental
examinations, including those conducted pursuant to remands
by the Board.
On VA dental examination in January 1997, the veteran
reported that he had fractured his upper jaw in 1949.
Subsequently, a tooth in front of the maxillary jaw evidently
abscessed and a United States Navy physician "lanced this
abscess," according to the veteran. On examination, the
veteran was found to be missing his upper anterior teeth,
which were replaced with a fixed bridge.
In January 1998, the examining VA dentist determined (based
on a review of the veteran's service medical records and
claims folder records) that the veteran had entered active
service with tooth #8 missing and replaced with a partial.
According to the veteran, during service, he fell out of bed
and hit his jaw on a footlocker, resulting in a fractured
jaw. However, the VA dentist noted that he found no notation
of such an incident. Again referring to the veteran's
account, the VA dentist related that the veteran was sent
back after the alleged event with copper around his tooth,
and the VA dentist assumed that the veteran had fractured his
tooth. In March 1949, the #8 tooth that had been missing
since before entry into active service was replaced with a
fixed bridge, which included a 3/4 crown on tooth #7 and a
thimble crown on tooth #9. The VA dentist explicitly stated
that there was no way of knowing now, fifty years later,
whether or not the veteran had suffered a fracture of the
jaw.
The VA dentist also commented as follows:
I do not believe that the fracture, as
the patient stated, caused the loss of
teeth. We do not have any documentation
of a fracture at the time or at any time
subsequent to that. The patient now
wears a six unit bridge which goes from
cuspid to cuspid. He claims to have had
this made at his own expense. There is
no way to prove whether or not the jaw
was fractured. I am assuming that part
of the alveolar bone may have been broken
whenever he hit his jaw on the foot
locker. However, if it was it was not
giving him any problems when they did the
fixed bridge in 1949.
I don't know what conditions are being
referred to, but I don't think that the
jaw fracture aggravated or caused any
loss of teeth.
On VA examination in October 1999, the examiner reiterated
the veteran's account of having fractured his jaw in 1949
while serving on active duty in China. The examiner,
however, remarked that he could find nothing wrong with that
area. On examination, the veteran had no subjective
complaints. The examiner commented that there did not seem
to be any impairment or lack of motion due to a fracture.
Furthermore, there was no limitation of movement from either
inner occlusal or inner incisal or lateral movements at all.
There was no bone loss from the fracture. There was no
impact on daily activities. X-rays of the jaw revealed that
everything appeared normal with no evidence of fracture or
bone loss. The final diagnoses included no visible result of
a jaw fracture on X-ray examination. Indeed, everything
appeared to have healed well, and the bridge in that area of
the mouth was perfectly good with no resulting problems.
As noted, service connection is available for disability.
38 U.S.C.A. §§ 1110, 1131. In this particular case, however,
there is no evidence of a current disability related to any
presumed jaw fracture. First, the veteran's service medical
records do not document any in-service fracture of the jaw.
Second, even assuming that the veteran did suffer a fracture
of the jaw, the recent VA examinations have revealed no
current disability involving the upper jaw. Absent a showing
of current disability there is no basis for establishing
service connection. Therefore, service connection is not
warranted for residuals of a fracture of the upper jaw.
Finally, the Board notes that there has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, 114 Stat. 2096 (2000); 38 U.S.C.A. § 5100 et seq.
(West Supp. 2001); see Duty to Assist Regulations for VA, 66
Fed. Reg. 45,620-45,632 (Aug. 29, 2001) (to be codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). This law
eliminated the concept of a well-grounded claim, redefined
the obligations of VA with respect to the duty to assist, and
imposed on VA certain notification requirements. This change
in the law is applicable to claims filed on or after the date
of enactment of the VCAA and to claims filed before the date
of enactment that are not yet final as of the effective date
of the VCAA. VCAA, Pub. L. No. 106-475, § 7, subpart (a),
114 Stat. 2096, 2099-2100 (2000); see also Karnas v.
Derwinski, 1 Vet. App. 308 (1991) (where law changes during
pendency of claim, version that is more favorable to claimant
applies unless otherwise provided for by VA or Congress).
Although the VCAA was enacted during the pendency of the
veteran's appeal, the veteran would not be prejudiced by a
decision by the Board at this time. See Bernard v. Brown, 4
Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24,
1992) (published at 57 Fed. Reg. 49,747 (1992)). VA has
substantially complied with the duty to assist and the duty
to notify provisions of the VCAA.
All relevant evidence necessary for an equitable resolution
of the issues on appeal has been identified and obtained.
The Board also finds that the veteran has been properly
notified on multiple occasions of the evidence necessary to
complete his application for a claim for service connection
for folliculitis of the back. The RO has sent the veteran a
statement of the case (May 1994) and supplemental statements
of the case (June 1995, October 1998, and February 2000)
identifying the pertinent laws and discussing the evidence.
VA has remanded the veteran's claim on two occasions for the
development of additional evidence and to afford the veteran
an opportunity to provide information necessary in obtaining
additional medical records. The evidence of record includes
the veteran's service medical records, various VA examination
reports, and the veteran's statements in support of his
claim. In addition, the RO has sent numerous letters to the
veteran advising him of the type of evidence required to
complete his claim for service connection and advising him of
the specific evidence being sought pursuant to the Board's
remands. VA has also sought to obtain additional information
in order to
obtain copies of medical records referred to by the veteran,
but no reply from the veteran has been forthcoming. See Wood
v. Derwinski, 1 Vet. App. 190, 193 (1991) ("[i]f a veteran
wishes help, he cannot passively wait for it in those
circumstances where he may or should have information that is
essential in obtaining the putative evidence"). The Board
is unaware of any additional evidence which is available in
connection with this appeal.
Accordingly, the Board finds that VA has satisfied its duty
to notify and assist pursuant to the VCAA and that under the
circumstances of this case, a remand would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided).
ORDER
Service connection for residuals of a fracture of the jaw is
denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals